The judicial system moves slowly, but it does move. A judicial conference committee has updated the model set of jury instructions federal judges use to deter jurors from using social media to research or communicate about cases on which they serve. It has long been the case that jurors are to avoid contact about the case outside of the courtroom, the idea being that they should decide the case only on what is presented to them during the case. Back in the day, this usually amounted to simply avoiding newspapers and television and to eschew conversations with friends and family. However, communication has changed dramatically in recent years. The advent of social media–Facebook, Twitter, and the like–makes communication that much easier, even in cases where a jury has been sequestered. Moreover, people’s attitudes about social media often vary from how they view communication with “real” people in face-to-face conversations. People will often share much more about themselves and discuss otherwise taboo subjects in social media than in these more traditional contexts. This inclination is heightened by the often anonymous nature of these interactions. Thus, a simple admonition to avoid discussing the case might not even register when someone hops on their Google+ account to post about the day’s events in court. The new instructions make sense.

On the other hand, the model instructions reference MySpace, so….

Just got back from Gen Con and, of course, had a great time. Got to play a lot of great games. Got to see a lot of old friends and a few new ones, including Geoff and Melina, my co-hosts on the “Law for Geeks” seminar. It was a great success. Good turnout, good questions. We covered a lot of topics: patent trolling, freelance contracts, fan fiction, Kickstarter, fair use, and lots more. If you couldn’t make it, have a listen:

http://lawofthegeek.com/2012/08/27/lotg-23-law-for-geeks-a-gencon-panel/

Friend-of-the-Blog, Daniel Solis put together some spiffy Geek/Lawyers tees and posted them to his CafePress shop. They feature the Geek/Lawyers tagline: “My other t-shirt is a pin-stripe suit.” Perfect for yourself or your geeky loved one. Perfect for game night or a deposition. Perfect for a trial–well, a Klingon trial. Go grab one.

Thanks, Daniel.

I previously pointed you in the direction of Law of the Geek podcast. It’s a great podcast: Well done. Good info. Consistent quality. Funny. Geoff and Melina put a lot of effort into it, and it shows. It’s so great, in fact, that they were nominated for an Ennie. If you’re more lawyer than geek, you might not know what the Ennies are. As the name implies, its an award event. It recognizes excellence in role-playing games, a topic frequently covered by Law of the Geek.

Well, voting opens today. Here’s the thing: You don’t need to be a geek to vote, and you don’t need to vote for any other categories. If you want to support some lawyers doing fun stuff in a tangential field, go vote for them. It takes about 10 seconds.

1) Click on this link to go the voting page: http://www.ennie-awards.com/vote/.

2) Find the Best Podcast category about 2/3 of the way down on the left.

3) Use the dropdown menu to rank Law of the Geek number 1.

4) Click the big “Submit Ballot” button on the right.

That’s it. You don’t need to sign up or give your info. Thanks for your time and your support.

N.B. – I’m like the Susan Lucci of Ennies. I’ve previously been nominated 7 times with no trophy to show for it.

If you’re not familiar with The Oatmeal–shame on you!–go check it out now.

The Oatmeal got into a kerfuffle with FunnyJunk, a content-aggregation site, over improperly posted material. FunnyJunk’s attorney got involved, and the kerfuffle escalated into a full-fledged imbroglio. There is a good summary of what happened over here. The incident was picked up over at Popehat, here and then here. My conversation, which began on twitter, migrated over to the comments section of that last post. It was a really good conversation, concerning a variety of issues. Do go and check it out.

A recent opinion out of the D.C. District Court is making the rounds–not for its holding, but for its footnote:

We also remind the parties that our Handbook of Practice and Internal Procedures states that “parties are strongly urged to limit the use of acronyms” and “should avoid using acronyms that are not widely known.” Brief-writing, no less than “written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.” George Orwell, “Politics and the English Language,” 13 Horizon 76 (1946). Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with references to “SNF,” “HLW,” “NWF,” “NWPA,” and “BRC” – shorthand for “spent nuclear fuel,” “highlevel radioactive waste,” the “Nuclear Waste Fund,” the “Nuclear Waste Policy Act,” and the “Blue Ribbon Commission.”

Full confession, I didn’t read the briefs. I’d be surprised if the lawyers didn’t write out the full text in the first instance and abbreviate thereafter. That’s pretty typical for attorneys. Usually, you’ll see something like this: The state improperly disposed of the spent nuclear fuel (“SNF”). Thereafter, the attorney uses the abbreviation. In fact, you’ll occasionally see another problem crop up here: (hereafter “SNF”), as if the “hereafter” adds anything to the parenthetical.

And I will take issue with the underlying assumption that these sorts of abbreviations are inherently bad. Orwell wasn’t referring to abbreviations as a bad habit. On the contrary, proper use of abbreviations can make reading a text much easier.

But my real issue is with the improper use of the word “acronym”. An acronym is a word formed from the initial letters of other words. “SNF”, “HLW”, and the like are not acronyms because the letters don’t make words. If it makes a word–like “scuba”, “radar”, etc.–it’s an acronym. If it doesn’t, it’s an initialism. Yes, this is a small, technical error. But I’m always irked by the hypocrisy of someone bitching about language while committing an error of language in the same breath. So, D.C. District Court, when you get a chance, please correct your handbook. It’s wrong.

Probably.

First off, let me say: This is not a political blog. I am not posting this as a political statement. I make no judgment about what you should think about Romney’s acts some 40-odd years ago at prep school and whether they should have any bearing on his candidacy for President. That is a discussion for another place. Moreover, I’m not passing on the validity of the story as reported, though it seems as though Romney has tacitly acknowledged that it occurred.

If you didn’t catch the news, there is credible corroboration that Mitt Romney was involved in an incident while in high school, where he and a group of friends held down another student while Romney forcibly cut the student’s hair. I was struck by the reaction of some in characterizing the incident, as described, as a mere prank. The fact is, it was a felony.

Section 750.82 of the Michigan Penal Code provides:

Except as provided in subsection (2), a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.

I don’t think there’s any question the conduct constitutes an assault. As I best I can tell, the Michigan Penal Code doesn’t define the term itself, but it clearly meets the common law definition of assault, which is simply putting someone in fear of an imminent harmful contact. (There actually was harmful contact here.) I also don’t think there’s any question a pair of scissors constitutes a knife or other dangerous weapon. We can safely assume that Romney was not intending to kill the student or cause him great bodily harm. It was a battery as well, but it doesn’t seem as though Michigan makes a distinction between assault and battery for this sort of incident. Finally, there is an aggravating factor of committing an assault in a school, but that only affects the level of punishment not the classification of the crime.

This is something of an old chestnut, but I still see it routinely, particularly in the letter and order that bear its name. The cease-and-desist letter is a staple of IP law. You see it a lot in settlement agreements too.

For the record, cease and desist mean the same thing. So a cease-and-desist letter makes about as much sense as a repayment-and-requital plan, a hiring-and-engagement agreement, or an order staying and abating a case. Just pick one. Better yet, just say “stop”.

I’ve heard a few stories of how this particular folly arose, including one regarding the derivation of the two terms. I think the explanation lies in the perceived (but inaccurate) difference in the nuance between the two words. I think most people read “cease” as the act of stopping and “desist” as the act of not starting (perhaps as a cousin or case of mistaken identity with “resist”). So, naturally, some lawyer was trying to prevent an uncharitable interpretation that would allow someone to stop doing something and then start back up again right away. Hence, not merely ceasing but also desisting. And, as with most legal language issues, the practice spread.

Please stop. Or cease. Or desist.

If you thought the future of robot-guided cars, promised by this:

was far off, you were mistaken. Because, well, this:

It is not hard to imagine a time when these robot-guided cars–even if they aren’t ubiquitous–are at least ordinary, like Segways. (After all, the Johnny Cab is basically the Google Car with Siri, right?) Naturally, this raises the question: Who is liable when the Google Car experiences a glitch and the double-meaning of hard-drive crash becomes a reality?

On the one hand, the answer is straightforward: If equipment is defective, the manufacturer is liable. In this way, the computer malfunction is no different than the airbag malfunction. Or the tires, transmission, or even an exploding fuel tank. Practically speaking, this can be beneficial to the consumer, as it’s a lot easier to collect damages from Google than the unemployed drunk who smashed into you. On the other hand, it certainly doesn’t feel the same as those sorts of glitches. It’s not hard to see why. The driving part of driving a car involves the perception, wisdom, choice, and even free will of the driver. (I recognize the “free will” is a loaded term.) In a typical driving situation, we have different judgments about the driver who gets into an accident because his tire blows out and the one who speeds through the red light. We instinctively hold the latter more culpable because the cause was more directly under his control.

In the robot-car situation, we off-load our involvement in the driving process to a computer. In this way, these personal decisions in the driving process don’t transfer to the computer. They simply evaporate and, along with them, their related moral implications. This subtle shift is, in fact, seismic. And it’s not just robot cars. Robot doctors are not far behind. And, shudder, even robot lawyers. What are the implications to society as humans give up more and more of their authority? Will these sorts of ethical choices become less important as they decrease in frequency, or will their rarity make them more important? Will our views of product liability become more developed as it grows more relevant? I expect there will be fundamental shifts in the way we view culpability and morality in this changing environment.

What do you think?

I just got back from Cuba on a people-to-people license. It was an amazing experience–particularly eye-opening given the echo chamber in South Florida from the Cuban exile community. I’ll be back to regular blogging next week. In the interim, I leave with this quick story:

My wife and I were headed from the Vedado neighborhood to the Hotel Nacional. We got in the cab and struck up a conversation with the driver, who was very friendly. He asked us what we did, and we replied that we are both lawyers. “Me too!” he exclaimed.

(In Cuba, there is a growing economic divergence between government jobs, e.g., attorneys, which are paid in “la moneda”, and tourism-related jobs, e.g., cabbies, which are paid in the newish “convertibles” or CUC’s / “kooks” and are worth about 25 times as much as their counterpart. In short, it’s more lucrative to be a cabbie in Havana than an attorney. I expect that to change when relations are normalized and travel and commerce are unrestricted. At that time, businesses will require legal expertise to deal with expanding commercial requirements.)